Our Juniors Remind Us About Environmental Responsibilities

Please save your praise, we don’t want it. Don’t invite us here to tell us how inspiring we are without doing anything about it. It doesn’t lead to anything.

Greta Thunberg is a 16 year old climate activist with Asperger´s and is one of the young witnesses speaking in front of Congress today to address climate change.  She also skipped a general opening statement, submitting a climate report so that they would listen to the science.  Another witness is a twenty year old activist from White Plains, NY (I have family there).  There also will be a "climate strike" on Friday and students at NYC schools have been given the okay to walk out to take part.

Meanwhile, Trump plans to revoke California's stronger Clear Air standards, a move that is bad policy and likely illegal.  What else is new?  One of the witnesses (Vic Barrett) is part of another lawsuit (if for years now) pushing the government to do more for climate change.  The lawsuit argues that the government violated the youths' rights by encouraging and allowing activities that significantly harmed their right to life and liberty, and sought the government to adopt methods for reducing greenhouse gas emissions.  The Supreme Court at one point let it continue though flagged that the claims are rather open-ended.

I could not open the link to the opinion, but the Slate article referencing a lower court opinion suggests why:

I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the foundation of the family, a stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress. … To hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.

The recognition that same sex marriage is part of the right to marry was a big move, but the right to marry itself has been around for quite some time.  Marriage includes both positive (benefits) and negative liberties (spousal immunity).  The claim here would entail positive rights, which is generally seen as something not obtainable in court. (I don't know exactly what they are aiming for here, but it seems rather open-ended.)  Consider this statement from Brown v. Board of Education:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

Education is a basic component of good citizenship, but what this amounts to as a matter of legal rights is unclear. State constitutions do provide some right to a basic education, but the US Supreme Court rejected an equal rights claim when claimants argued school funding by local district property taxes violated the Constitution. Justice Marshall in dissent flagged that education is a fundamental right.  This was of some importance in Plyler v. Doe, when Texas tried to totally keep undocumented children out. The "knowing decision" part is also cited by the article:

Citing the public trust doctrine, an ancient understanding of the responsibility of governments that dates back to Roman times, [Judge] Aiken agreed with the plaintiffs that the aggregate actions and inactions of the government on climate change have “so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”

It would be interesting to read the full opinion. The litigation is ongoing, so it is the apparent broad reach is somewhat of academic interest.  I have seen some argue that there is basically a Ninth Amendment right to a safe environment.  This need not mean that the right is enforceable without legislative enabling acts, but it does fit with the Preamble of the Constitution in general.  Justice Douglas once noted:

There is, of course, not a word in the Constitution, unlike many modern constitutions, concerning the right of the people to education or to work or to recreation by swimming or otherwise. Those rights, like the right to pure air and pure water, may well be rights "retained by the people" under the Ninth Amendment. May the people vote them down, as well as up?

The majority upheld the closing of pools even though there appeared to be a discriminatory purpose (see, e.g., Justice White's dissent).  Douglas might be unnecessarily modest here.  He thought the Constitution did say "a word" in some fashion about the right of privacy, even if it did not in actual words.  It is quite possible that the right of education also exists as a necessary aspect of being a good citizen with third party effects (e.g., uneducated jurors would deprive people of due process, perhaps).  On some level, you can say the same thing about the right to a good environment.

The stronger claim might be to look at the laws in place and argue that they in some fashion protect the environment and provide positive duties to the government.  The litigation more likely appears to be a means to provide pressure to obtain governmental action (and perhaps discovery).  As noted, state and other nation constitutional provisions in this context can be found. But, the U.S. Constitution is somewhat thin ground as a matter of rights. On the other hand, like with education, it is easier to find authority and duty to act.